Birth of a concept

This book tells the story of the emergence of the concept of crimes against humanity. It examines its origins, the ethical assumptions underpinning it, its legal and philosophical boundaries and some of the controversies connected with it. A brief historical introduction is followed by an exploration of the various meanings of the term ‘crimes against humanity’ that have been suggested; a definition is proposed linking it to the idea of basic human rights. The book looks at some problems with the boundaries of the concept, the threshold for its proper application and the related issue of humanitarian intervention. It concludes with a discussion of the prospects for the further development of crimes-against-humanity law.

02 Crimes Against Humanity 032-074 3/12/10 10:11 Page 32 2 Why against humanity? In this chapter I ask in what sense acts characterized as being crimes against humanity can be reckoned to be, indeed, against humanity. As we have seen, the category emerged formally at the end of the Second World War in connection with the trials of Nazi war criminals, and although its emergence was not just out of the blue but foreshadowed by the earlier developments within customary international law which I surveyed in the last chapter, its use as one of the headings in

in Crimes against humanity

Background to crimes against humanity The origins of crimes against humanity are less clear than those of war crimes, but the concept was first invoked in the early nineteenth century in order to condemn brutal treatment by a State of its own citizens. 1 The concept of crimes against humanity was also referred to in the preambular paragraphs of the 1868 St Petersburg Declaration and the 1907 Hague Convention, which alluded to limits imposed by the ‘laws of humanity’ during armed conflicts, but the notion

in War crimes and crimes against humanity in the Rome Statute of the International Criminal Court

This book provides a critical analysis of the definitions of war crimes and crimes against humanity as construed in the Rome Statute of the International Criminal Court. Each crime is discussed from its origins in treaty or customary international law, through developments as a result of the jurisprudence of modern ad hoc or internationalised tribunals, to modifications introduced by the Rome Statute and the Elements of Crimes. The influence of human rights law upon the definition of crimes is discussed, as is the possible impact of State reservations on the underlying treaties that form the basis for the conduct covered by the offences in the Rome Statute. Examples are also given from recent conflicts to aid a ‘real-life’ discussion of the type of conduct over which the International Criminal Court may take jurisdiction.

03 Crimes Against Humanity 075-097 3/12/10 10:11 Page 75 3 A jurisdictional threshold In Chapter 1 I traced the emergence of the concept of crimes against humanity from its inchoate beginnings in the literature and the instruments of international law to its official birth at the Nuremberg Trials. It is a moment of origin, this, that is seen by many commentators as being of revolutionary significance in the development of international law. In Chapter 2 I then examined the various meanings that have come to be attached to the expression ‘crimes against

in Crimes against humanity

04 Crimes Against Humanity 098-112 3/12/10 10:11 Page 98 4 Humanitarian intervention We have seen in the preceding chapters that the concept of crimes against humanity implies a limit to state sovereignty. It is natural, therefore, that discussion of the concept, and especially of its beginnings, should make reference to an earlier tradition within international law to which that same limit is germane – I mean the tradition of humanitarian intervention. In fact, the principle of humanitarian intervention stands not only at the origin of the offence of

in Crimes against humanity

01 Crimes Against Humanity 001-031 3/12/10 10:10 Page 1 1 Origins and development It is an important principle of the rule of law that there is no crime except under law, that is, except when an action is in breach of some obligatory norm passed or recognized as being one by the body or bodies with proper authority so to pass or recognize it. Most generally this has meant that crimes are crimes under one or another system of municipal law and, since the origin of the modern state, that the definition and the punishment of crime have been seen as being the

in Crimes against humanity
Abstract only

00 Crimes Against Humanity i-xiv 3/12/10 10:09 Page vi Introduction The idea of crimes against humanity was born, formally speaking, at the end of the Second World War. It was one of three classes of offence – the other two being crimes against peace and war crimes – in the London Charter signed by the Allied Powers on 8 August 1945, and it made up Count Four of the indictment of Nazi leaders and officials before the International Military Tribunal at Nuremberg. This much is a matter of generally agreed fact. Much else about the idea, however, is contested

in Crimes against humanity
Abstract only

05 Crimes Against Humanity 113-130 3/12/10 10:12 Page 113 5 Utopia into law Alain Finkielkraut has written that it was a purpose of the Nuremberg Trials ‘to bring the law to justice’.1 One may express the same thing the other way round: the purpose of the trials was to bring justice into the law, the law of nations. It was to do so by making the demands of a universalist morality the basis of what has been called, in a related context, ‘a revolutionary legality’.2 This is a vision of legal utopia: utopia, not as some unattainable state of perfection, but as

in Crimes against humanity
Uses and Misuses of International Humanitarian Law and Humanitarian Principles

actors in conflicts. Neither a moral code to be brandished nor a relic to be dismissed, IHL helps humanitarian organisations find their place in war. That is not nothing, and it makes IHL worth defending. To expect more is to forget what it is, at bottom, and delude ourselves about its virtues. To imply that war can be civilised by law is to ignore the political realities of both law and war. Henry Dunant talked about creating ‘oases of humanity’ in the flood of violence that is war. Let us

Journal of Humanitarian Affairs